Proposed Rule Expands Scope of Waters Covered by Clean Water Act

June/July 2014 VOL 12 No. 3

Michael C. Ford, Attorney

On March 25, 2014, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers jointly proposed a new rule to clarify the scope of waters subject to the Clean Water Act. The proposed rule redefines the meaning of "waters of the United States," a definition fundamental to determining the applicability of the Clean Water Act requirements. Under the premise of providing more predictability and consistency, the rule categorically defines six types of water bodies as "waters of the United States" and provides for a case-by-case determination of whether "other waters" should be deemed jurisdictional. Specifically, the rule defines "waters of the United States" as:

1.   All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
2.   All interstate waters, including interstate wetlands;
3.   The territorial seas;
4.   All impoundments of waters identified in paragraphs (a)(1) through (3) and (5) of this section;
5.   All tributaries of waters identified in paragraphs (a)(1) through (4) of this section;
6.   All waters, including wetlands, adjacent to a water identified in paragraphs (a)(1) through (5) of this section; and
7.   On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a water identified in paragraphs (a)(1) through (3) of this section.

Although some of the categorical determinations are relatively uncontroversial, the agencies would greatly expand their jurisdiction by deeming all tributaries and adjacent waters as "waters of the United States." The breadth of the agencies' reach is revealed in the definitions and interpretations of key terms such as "tributary," "adjacent," "neighboring" and "riparian." The agencies also broadly interpret what it means for a water body to have a "significant nexus" to a water of the United States.

The scientific underpinning of the proposed rule is a draft EPA report entitled  "Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence."  As of the publication of the proposal and the drafting of this article, the Connectivity Report was still undergoing review by the EPA Science Advisory Board.  The Board was reportedly prepared to include in its comments a recommendation that the Connectivity Report endorse the idea of various degrees or gradients of connectivity, rather than the "in or out" approach taken by the draft guidance.  Stakeholders requesting an extension of the original June 5, 2014 comment deadline pointed out that EPA has put the cart before the horse in releasing a proposed rule based on the draft Connectivity Report.   

The definition of "waters of the United States" impacts the scope of various provisions of the Clean Water Act including the following:

1.   Section 402 National Pollutant Discharge Elimination (NPDES) permit program
2.   Section 404 dredge and fill permit program
3.   Section 311 oil spill prevention and response program
4.   Section 303 water quality standards and total maximum daily load programs
5.   Section 401 water quality certification process

As a result of the proposed rule, real estate and renewable energy developers, miners, forest and timber operators, and a wide variety of manufacturers may be subject to increased regulatory requirements governing waste discharges, storm water management, and spill prevention and control programs. The scope of the proposed rule will have a particularly significant impact in the arid and semi-arid west because the broad definition and interpretation of key terms signals the agencies' intentions to reach the vast majority of intermittent and ephemeral drainages.

Impacted businesses or trade associations should submit comments concerning the proposed rule to the agencies to make the impacts of the proposed rule and any objections to the rule known. Commenting on the proposed rule is essential to encourage the agencies to narrow the scope of the proposed rule. Strategic comments also lay the foundation for any subsequent administrative or judicial contest to the final rule.  The original comment deadline has been extended to October 20, 2014. 

Meanwhile, bills have surfaced in the Senate and House of Representatives which would prohibit the agencies from implementing the expanded definition of their jurisdiction contemplated by the proposed rule. Several House committees were also holding hearings relating to the proposal. While not this administration's most controversial environmental regulatory proposal, this one faces rough waters ahead, including a storm of litigation if finalized.

This area will be reformated at a later date.